37 F. 826 -

37 F1d 826

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Case Text

FEDERAL REPORTER,

'vol. 37.

'Upon the same subject, says Mr. Cooley: "If a statute providing a remedy is rep!'laled while the proceedings are pending, such proceedings will be thereby determined, unless the legislature shall otherwise provide; and if it be amended, instead of repealed, the jUdgment pronounced in suoh proceedings must be according to the law as it then stands." Cooley, Const. Lim. (4th Ed.) 449. , The above cases seem to furnish a conclusive answer to the position assumed by counsel for the plaintiff in this suit. ' They insist a considerable sum of money was expended by their client in the preparation of this cause for trial after the order of court of November 5, 1885, was entered, returning the cause here, and that the act of 1887; which authorizes it to be remanded', deprives him of his property without due process of law. It may be proper to remark in this connection that, as disclosed by the record, all the interrogatories filed by the plaintiff in this suit, and the commissions to take the testimony of witnesses, were filed subsequent to the passage of the act of March 3, 1887. The expense incident thereto wastherefore'i4ctured with full knowledge of every provision of that act, including,the, Clause which authorizes the remandiQg of pending cailses to the In the cases above cited costs necessarily accumulated wittl the, litigation, of which, by the ruling of the court, litigants were deprived; but it was not intimated by the court that the existence of that fadt 'constituted a valid dbjection ttl the constitutiob.ality of the law. Costsare inevitable in the prosecution of judicial proceedings. They follow the litigation "as follows principal, or as shadow the substanc.e,", ,And if congress haEi power to confer jurisdiction upon, and withhold it from. the circuit courts at discretion, and ,to regulate the lpanner of its exercise and the practice and procedure of those courts, it cannot be truly said that costs incurred in the cirQuit court upon removal of:1l. cause ,are divested "without due process ,of law" when the same is remanded to the state court pursu.ant to the legislation of congress; that is to say, legislation enacted in obedience to the authorization of the constitution. That the enactment of the clause of the act of March 3, 1887, assailed by the plaintiff in this suit, was a valid e:x:ercise of constitutitional power on the part of congress, admits, in my j:Q:dgment, of no question, , ' It is further objected by the plaintiff's counsel that a remanding of the ,Will leave him as the state court, upon removal of the suit, was absolutely divested of jurisdiction, which cann,ot The of the,supreme court, to which reference. has already been made,would Seem to dispose of that objection. But is it true that no remedy reniains? To properly appreciate the position sumed by counsel, the proposition submitted by them in argument will bilstateq in their own words. "By the removal," they assert, "the jurisof the state court was completely divested, obliterated, lost, and as if the Buit hadnever beencommen<;ed in that court;" and, in support thereof, reference is illlj,de to the following cases: Gordan v. 16 Pet. 97 etseq.; Kanouse v. Martin, 15 How. 208, 209; Insurance Co. v. Dunn, 19 Wall. 223,224; Virginia v. Rives, 100 U. S. 317; Ruill'oad Co.

BmDSEYE. II. SHAEFFEB.

.

827

v.Mwsissippi, 102 U. S.135; Kemv. Huidekoper, 103 U.· S. 493; Railroad Co·. v. Koontz, 104,U. S. 5 et seq.j Railroad Co. v. White, 111 U. S. 134,4 Sup. Ct. Rep. 353;. Davis v. South Carolina, 107 U. 597,2 Sup. Ct. Rep. 636; Steam-Ship Co. v. Tugman,106 U. S. 122, i Sup. Ot: Rep. 58. If the proposition of counsel be construed to.mean that upon the removal of a cause the jurisdiction of the state court is so utterly divested, obliterated, and destroyed that it cannot be restored by a proper order of the court to which the cause was removed, it certainly can find no support in the authorities relied upon by them. Those cases, and many others which have been examined, simply decide that after a cause has been removed iroqI a state to a federal court, the former is without jurisdiction to proceed further while the cause is pending in the latter, and if, notwith,standing the removal, the state court persist in the effort to exercise juril1diction, its proceedings are null and void. Quite· different is the case when the federal court voluntarily relinquishes its jurisdiction in favor of the state courts. In each of the cases cited the state court if the cause had not refused to let go its jurisdiction, and proceeded been removed; thus ignoring the law of congress, and the right of the nonresident citizen to remove his suit.in compliance therewith. That the orders made. by the state court in a cause, under such circumstances, are void, will not be questioned at this late day in view of the uniform decisand state govions rendered by the judicial tribunals of both the ernments. See, also, Dietzsch v. HUidekoper, 103 U. S. 495 et seq.oj Durham v. Southern Co., 46 Tex. 186-188. But it surely does not follow that the state courts may not reacquire their lost or suspended jurisdiction when the. cause is remanded by a proper order of the federal court. n would seem unnecessary to refer to authorities in support of a proposition so self-evident. It is the common practice of the federal courts to remand Causes to the state and for the latter to proceed to a final determination of the controversy without let or hindrance. A brief reference will be'made, however, to a few of the cases which illustrate the principle, and indicate the proper practice of th'e courts in remanding causes. Thus it is said by the court in Railroad Co. v. Koontz: "When the suit is docketed in the circuit court, the adverse party may move to remand. If his motion is decided against him, he may save his point on the record, and after final judgment bring the case here for review, if the amount involved is sufficient for our jurisdiction. If in such a case we think his motion should have been granted, we reverse the judgment oithe circuit court, and direct that the suit be Bent back to the state conrt 'to be proceeded with there as if no removal had been had. If the motion to remand is decided by the circuit court against the petitioning party, he can at once bring the case here by writ of error or appeal for a review of that decision without regard to the amount in controversy." 104 U. S. 15, 16. We have already seen that the petitioning party is precluded by the act of 1887 from asserting the right of appeal or writ of error from an order remanding the case. Sherman v. Grinnell, supra. In Ayers v. ·Ohicago, .101 U. S. and Hoadley v. San Franci8co, 94 U. S. 4, the court affirmed the . prder of the circuit court remanding the causes.. In Steamr Ship Co. v.pugrnan, 106 U. S. i22, 1 Sup. Ct. Rep. 58, the court say

as

828

FEDERAL REPORTER,

vol. 37.

that every order made by the state court in the cause after its removal is coral7/. non judice unless its jurisdiction be actually restored. See, also, l'll8Urance Co. v. Dunn, 19 Wall. 223. The decisions of the supreme court of this state are in perfect harmony with the doctrine asserted by the supreme court of the United States, as reference thereto will clearly make manifest. Kleiber v. McMantts is a case whE:re this court remanded the suit, which had been removed to it from the district court of Cameron county. The state court, after the case was remanded, refused to proceed with the trial, "on the ground that the court had, by the order of removal theretofore made, lost, and never reacquired, jurisdiction of the cause." The supreme court, however, compelled the judge of the district court, by the writ of mandamus, to proceed with the trial. 66 Tex. 50. The suit of Seeligson's Ex'r.v. TrarnJportation Co. was originally instituted in the district court of Harris county, and subsequently removed to the United States circuit court at Galveston. Upon motion of plaintiff in the latter court the suit was dismisseci, and the order of dismissal affirmed bytbe supreme court of the United States. The mandate from the supreme court was thereafter filed in the circuit court, and also in the district court, of Harris county, and the latter court, on motion, dismissed the cause for want of jurisdiction. A motion to reinstate the case was duly entered and overruled by the court, from which ruling an appeal was taken to the supreme court. Upon the questions submitted to it, the supreme court stated its conclusions as follows: "The court holds (1) that. no cause for removal existing, jurisdiction of the cause remained in the district court, save as in fact snspended by the atl tempted removal; (2) that no formal order by the circuit conrt, relinqUishing jurisdiction, after the dismissal, was necessary to enablethe district court to resume its proceedings; (3) that the certified copy of the mandate Jromthe supreme court to the United States circuit court was competent evidence of the refusal of the circuit court to take jurisdiction; and (4) upon being so in, formed of the action of the federal courts, it devolved upon the district court to proceed with the cause as with other cases on its docket." 7 S. W. Rep. 708. .

.

But the court need not seek in adjudged cases the rule which should it in determining the course to be pursued in this case. The statute is unambiguous, leaving no room for doubt, and no latitude for con, Struction. It provides that, it shall appear to the satisfaction of said" (circuit) "court that said party will not be able to obtain justice in ·such state court, it shall cause the same to be remanded thereto." The conclusions appears to be irresistible to my mind that the plaintiff is not without a remedy, but he may proceed without difficulty in the forum first invoked by him to determine, by due course of law, all questions involved in his suit. The statute does not profess, as claimed by plaintiff, to confer original jurisdiction upon the state courts. It has reference only to causes removed, and the effect of the order remanding them is simply the restoration oLa jurisdiction previously acquired by the state c;:ourt, but held iIi abeyance during the pendency of the cause in this court, rather than, as contended by the plaintiff, the investiture of original jurisdiction.

BIRDSEYE ,. SHAEFFER.

829

Under the act of 1867 and the Revised Statutes, it seems that whether prejudice or local influence, preventing justice being done, really existed, was not left open for investigation by the circuit court; or, in other words, the statutes in force prior to the act of 1887 made the removal in cases of that character depend upon the filing of the necessary affidavit in the state court, and the giving there of the required bond. Malone v. Railway Cb., 35 Fed. Rep. 628; Fisk v. Henarie, 32 Fed. Rep. 421. The act of 1887, however, expressly authorizes, as to causes pending at the date of its passage, an examination "into the truth of said affidavit, and the grounds thereof;" and the evident intention of congress was to supply the deficiencies of existing legislation in that respect, and restore to the local jurisdictions the class of causes embraced in the act, unless it should appear to the satisfaction of the circuit court that the plaintiff removing the suit would not be able to obtain justice in the state court. Under the act, the truth of the affidavit and the grounds thereof appearing, the cause remains in the circuit court for trial; otherwise, it goes back,-it is remanded to the state court for determination; and that court thus resumes, in a proper way, and in accordance with legal methods, its rightful jurisdiction and proceeds in its own way to determine the rights of the parties. The act of 1887 being, as already stated, clearly constitutional, is not less obligatory upon the state than the federal courts, (Const. U. S. art. 6, cls. 2, 3,) and it will not be presumed that the former will refuse to yield obedience to its requirements. · It is further said in argument that the testimony taken in the cause while the suit was here pending will be unavailing and inadmissible in the state court. In,reply to that objection, the supreme court say: "It will be·for the <lourt. when the case gets back there, to determine what sh,\l1 be done with pleadings filed and testimony taken during the pendencyof the suit in the other jurisdiction." Ayres v. Wiswall, 112 U. S. 190, HIl, 5 Sup. Ct. Rep. 90. lf the laws of the state are inadequate to afford the necessary relief in such cases, the legislature will doubtless cure the defect by appropriate legialation,when the omission is ealled to their attention. Froll)the foregoing views, expressed at greater hmgth than was perhaps necessary, it follows that the motion to set Rsidethe order of the court remanding the cause must be denied; and it is so ordered.

Bao

FEDERAL..,lWPORTlilB,: vol.

87·

,'i'

D. M..OSBORNE,&·00.t1.MrssoURI

I

PA.C.

Ry. Co.

(Oircuit Court. E. lJ. Mi88ouri. l;1arch 11, 1889.)

INJUNCTION-REMEDY AT

Complainant. a property oWner on a street along which defendant was about .to construct a railroad track. under authority of tIle city. filed its bill for equitable relief. on. the. ground that its. property would be dllmaged. and that compensation had not been paid as required as a condition precedent by the state 'constitution. (Const. Mo. art. 2. §21;) but no application for a temporary injunction was made. andintbe: mean time the track was laid.. and in daily use. He.d. on final hearing. that: the court would not grant an injunction, but would leave complainant to its remedy at law. .'

LAW.:.....DELAY.

In Equity. Bill for injunction. On final hearing. For opinion on demurrer to answer, see Rep. 84., This was a bill to restrain the laying of a railroad track along Gratiot street in the city of St. Louis; as authorized by a municipal ordinance and by the general statutes of the state. . Complainant owned a lot abut· ting on the street, on a portion of which lot it had erected a warehouse used forthe storage of agricuItllralmachinery. It based its right to relief on the ground that the laying of a railroad track along the street in. front of its property would cut off access to one entrance oHts warehouse, and lessen the market and rental value. of its property, and that under section 21, art. 2, of the of the state of the track in question could. not lawfully be laid until such damages had been ascertained and paid. Section 21 is as follows: "Private property shall ndt be taken'or damaged for public uSe without just compensation. Such compensation shall be ascertained by a jury orboard of commissioners, * * * and until the same shall be paid to the owner, or into court for the owner, the property shall not be disturbed, or theproprietary rights of the ownet· therein divested." Section 4, art. 12, Const. Mo., referred to in the opinion, contains the following provision: "The right of trial by jury shaH be held inviolate in all trials of claims for compensation, when, in the exercise of said right of eminent domain, 'lny incorporated company shall be interested either for or against the exel'cise of .said right." Mills Flitcrajt, for complainant. Thomas J. Portis and Bennett Pike, for defendant.

«

\ THAYER, J., (after stating the facts as above.) The first question that presents itself in this case, now that the evidence has been heard, is whether the complainant is entitled to equitable relief, even conceding that the laying of the track in and along Gratiot street did, to some extent, damage complainant's property within the meaning of the constitution of the state. Article 2, § 21. It is most likely true, as claimed by complainant's counsel, that by virtue of section 4, art. 12, Const. Mo., complainant is entitled to have its damages assessed by a jury, and that the court cannot in this proceeding assess the damages sustained, and en-